MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In essence, that his 20 percent Army disability rating be increased to 40 percent and that he be permanently retired with that rating; or, alternately, that he be placed in a temporary disability retired list (TDRL) status.

APPLICANT STATES:  That his disability should have been rated under VA Schedule for Rating Disabilities (VASRD) Code 5293, vice 5295; and that he believes that the medical evidence shows that his condition is unstable and warrants TDRL status.  In support of the application, he submitted a memorandum signed by the Chief, Neurology Service, Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas.

EVIDENCE OF RECORD:  The applicant's military records show:

He was serving on active duty in pay grade E-3 during the period of time in question.

On 23 May 1997 he underwent a medical evaluation board (MEBD) at BAMC.  The MEBD Narrative Summary shows that despite the surgical repair of two herniated discs, his low back pain persisted.  Referral to a physical evaluation board (PEB) was recommended.

On 19 June 1997 an informal PEB found him physically unfit by reason of low back pain and rated the condition as 20 percent disabling under VASRD Codes 5299 (by analogy) to 5295.  Separation with entitlement to disability severance pay was recommended.  The applicant requested a formal hearing of his case.

The 8 October 1997 memorandum submitted by the applicant is signed by the Chief, Neurology Service, BAMC.  The document shows that he opined that the applicant's disability should be reconsidered under VASRD Code 
5293, intervertebral disc syndrome; and that the applicant's condition should be rated severe under that code (a 40 percent disability rating).

On 23 October 1997 a formal PEB concurred with the findings and recommendation of the informal PEB.  The applicant did not concur; however, following a review by the Physical Disability Agency (USAPDA), the PEB findings and recommendation were approved for the Secretary of the Army on 25 November 1997.

A separation document is not in the available records; however, the applicant indicates that he was separated on 26 January 1998 with entitlement to disability severance pay.

A VA Rating Decision is not in the available records.

On 19 November 1998 the Board was advised (COPY ATTACHED) by the Army Review Boards Agency (ARBA) Medical Advisor that the applicant was properly rated under VASRD Code 5295; and that there is no basis on which to grant his request.  Denial of the application was recommended.

The applicant was provided a copy of the advisory opinion and provided the opportunity to submit a rebuttal to the opinion within 30 days.  He did not respond.

Army Regulation 635-40, paragraphs 4-11 through 4-17, provide that an MEBD will recommend referral to a PEB those soldiers who do not meet medical retention standards outlined in Army Regulation 40-501; that attending medical personnel will not tell the soldier that he is medically or physically unfit for military service; that the MEBD Narrative Summary will not reflect a conclusion of unfitness; and that only a PEB, established to evaluate all cases of physical disability equitably for the soldier and the Army, will determine if a soldier is physically unfit.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, Appendix B, paragraph B-39, intervertebral disc syndrome (Code 5293) and lumbosacral strain (Code 5295), provides that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement, e.g., loss of bladder or bowel control, or sensory loss in an extremity determined by pinprick testing.  Lesser ratings will begin with a zero percent rating for chronic low back pain of unknown etiology (mechanical low back pain).   Demonstratable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States Code, Sections 310 and 331, permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  Disability rating officials at an informal and a formal PEB rated the applicant's condition as 20 percent disabling under VASRD Code 5295.  The VASRD Code and the recommended rating were reviewed by the USAPDA and determined to be appropriate.  Additionally, the ARBA Medical Advisor has determined that the VASRD Code and rating were correct.  Accordingly, notwithstanding the opinion of the Chief, Neurology Service, BAMC, whose duties presumably do not include determining disability ratings, the VASRD Code and the rating appear to be correct.

2.  There is no evidence of record, nor has the applicant provided sufficient evidence which would indicate that his medical condition met the criteria for TDRL status at the time of his disability processing.

3.  Although a VA Rating Decision is not in the available records, an award of a higher rating by the VA does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different laws, regulations, and policies, to arrive at a different disability rating based on the same impairment.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05077/AR1999016265	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.